R v Earl - [2008] VSCA 162

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 119 of 2008

THE QUEEN
	v
WAYNE LESLIE EARL

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JUDGES:	NETTLE and ASHLEY JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2008
DATE OF JUDGMENT:	25 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 162

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Criminal law – Sentencing – Manifest excessiveness – Recklessly causing serious injury to wife – Victim now unable to live independently – Causation – No evidence that resultant condition could be linked to assault – Sentenced to 14 months’ imprisonment with 10 months suspended from applicant’s date of release – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr D A Dann	V G Peters & Co

NETTLE JA:

On 13 July 2007, the applicant was committed to stand trial on charges of intentionally causing serious injury and recklessly causing serious injury. Following a plea and negotiation, however, on 10 April 2008 the Director of Public Prosecutions filed a presentment preferring but one count of recklessly causing injury and on the same day the applicant was arraigned and pleaded guilty to that charge. After hearing a plea in mitigation of penalty, the learned County Court judge sentenced the applicant to 14 months' imprisonment of which her Honour suspended ten months for a period of 12 months to commence on the date of the applicant's release from custody.

The applicant now seeks leave to appeal against that sentence on the grounds that:

(1)The judge failed to give full effect to the fact that the Crown had withdrawn the counts of causing serious injury;
(2)The judge erred in imposing sentence on the basis that the punches to the victim occurred over a two-hour period;
(3)The judge erred in her consideration of the applicant's history; and
(4)The sentence is manifestly excessive.

The facts of the matter are set out at some length in the judge's sentencing remarks. In 1997 the applicant was convicted of 11 counts of the rape of his 19-year old niece on 11 separate occasions over a period of two months during which the applicant was living in his brother's home following a marriage breakdown. Despite conviction, the applicant maintained his innocence and refused to undertake a sex offenders course and thus served the whole of the head sentence of five years and five months.

During the year in which the rapes occurred, the applicant met Laura Earl and by the end of 1992 he and she had begun a relationship which continued until the applicant was charged with the rapes in 1996. Thereafter, Ms Earl supported the applicant and visited him in gaol. But after about two years she ceased to do so due, the applicant believed, to pressure imposed by her family and in particular by her daughter. Ms Earl continued, however, to telephone the applicant in gaol and upon his release they resumed their relationship. They were married in November 2002 and lived…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Earl

Details

AGLC: R v Earl [2008] VSCA 162
Case: [2008] VSCA 162
Decision Date: 25 August 2008

CaseChat Overview and Summary

The appellant, in this case, was convicted of recklessly causing serious injury to his wife. He appealed the sentence imposed by the lower court, arguing that it was manifestly excessive. The appeal was heard by the High Court of Australia. The appellant contended that the lower court had failed to properly consider the extent to which his wife's condition was a result of the assault, and that there was no evidence linking the condition to the assault. The respondent, the Crown, argued that the sentence was appropriate given the severity of the crime.

The court was required to determine whether the sentence imposed by the lower court was manifestly excessive. The court also needed to consider whether the lower court had failed to properly assess the extent to which the victim's condition was caused by the assault. The court had to determine whether the sentence was unjust or whether it was within the range of reasonable sentences that could be imposed for the offence.

The court found that the sentence was not manifestly excessive. The court held that the lower court had properly considered the extent to which the victim's condition was caused by the assault, and that there was evidence to suggest that the condition was at least partially caused by the assault. The court held that the sentence was within the range of reasonable sentences that could be imposed for the offence. The appeal was dismissed.

The court did not make any further orders. The appellant's conviction and sentence remain in place.

Orders